Judicial approach to “The interest of child” in child marriage

Subject Areas : Quarterly Journal of Woman and Society

hajar azari ¹ (Assistant Professor, Tarbiat Modares University, faculty of humanities, department of women studies)
Monire Mirahmadi ² (دانش آموخته کارشناسی ارشد گروه مطالعات زنان، دانشگاه تربیت مدرس)

Received: 2018-10-22 Accepted : 2020-01-19 Published : 2019-12-22

Keywords: Child marriage, Interest, Judicial procedure, Article 1041,

Abstract :

Among the legal provisions that have addressed the issue of child marriage in Iranian law, Article 1041 of the Civil Code is significant. According to this Article, child marriage before reaching the legal age in Iran is provided to the permission of the father (as guardian) and considering the best interest of child as determined by competent court, without providing the precise definition of “The Interest of child”, “legal Guardian” or the accepted reasons for permission given by father. Since the concept of “The interest of child” is subject to various economic, social, cultural and religious factors in Iran, it is possible that courts allow child marriage only because of the custom of that region or only because of physical puberty or simply because of father’s permission. Since, there is different interpretation of the concept of “interest of child” in different courts; therefore, judicial procedure -as one of the important sources of law making in Iran- plays a crucial role to resolve this ambiguity, clarify the meanings and protecting children.
This study has been conducted using a qualitative research methodology by interviewing judges, studying and analyzing the cases and examining the context in which the children lives, it evaluates and analyses the reasons that cause judges to allow child marriage. Finally it concludes that allowing child marriage typically doesn’t consider and reflect the interest of children and will cause personal-social and physical- mental damages for them.

References:

-   Abedi, Mahammad, Taheri, Hadi, (2013), The interest in of the child marriage and the guarantee of its implementation, Lawyer Journal, 8, 15- 31. (Persian)

-   Ahmadi, Kamil, (2017), Echoes of silence, Journal of Humanities and Islamic Strategic Studies, 11(2), 1-37. (Persian)

-   Albouti, Mohamad Saeed Ramazan, (2005), Expediency and Sharia: Principles, criteria and place of expediency in Islam (Asghar Eftekhari), Game No, Tehran. (Persian)

-   Ashori, Mohammad, Shahla, Moazami, (2002) Phenomenon of wife killing in Fars Province, 58, 11-32. (Persian)

-   Asadi, Leila, (2013), Family criminal law, Mizan. (Persian)

-   Asadollhai gholami, Akram, (2013), Jurisprudential legal review of child marriage and its comparison with human rights, Master Thesis, Azad University, Tehran. (Persian)

-   Davoodi, Homa, (2007), Relationship of Family Law and Judicial Procedures with Family issues, Journal of jurisprudence and family law, 47, 61-75. (Persian)

-   Ebrahimi, Habibeh, Sirus, Fakhraee, (2013), The study of social factors associated with early marriage in Naghadeh, 31, Journal of sociology studies, 21, 93-110. (Persian)

-   Etedal, Mohammad, (2000), The validity and importance of judicial procedure, Navid publication, Shiraz. (Persian)

-   Eftekhar zadeh, Zahra, (2015),  Lived Experiences of women in early marriage, Research Journal on Social Work 3(1), 108-156. (Persian)

-   Emami, Seyyed Hassan, (1989), Civil law (4), Eslamiye.Tehran.

-   Gorji, Abolghasem, (2013), Comparative analysis of family law, 3, Tehran University, Tehran.

-   Hashemi, Seyyed Hassan, (2014), The conceptualization of expediency and its place in family law, The Quarterly Journal of Islamic government, 75.

-   Katozian, Naser, (1999), Family law (marriage and divorce), 5, Dadgostar, Tehran. (Persian)

-   Katozian, Naser, (2013), Introduction to law, 89, Dadgostar, Tehran. (Persian)

-   Makarem shirazi, Naser, (2001), Marriage Book, Imam Ali School. Qom.

-   Makarem Shirazi, Naser, (2009), Family rules in the light of Islamic jurisprudence, Imam Ali School. Qom. (Persian)

-   Musavi Khomeini, Rohollah, (1984), Tahri Al vasileh, Islamic publication, Qom. (Persian)

-   Mehrizi, Mehdi, (2003), Women’s identity and rights in Islam, scientific and cultural publication, Tehran. (Persian)

-   Nazarzadeh, Abdollah, (2013), Expediency and its role in deducing religious and state rules, The Quarterly Journal of transcendent policy.1. (Persian)

-   Omidi, Jalil, (1998), Permission for child marriage (comparative study and critical evaluation of article 1041 of the Civil Code, Journal of Papers and Reviews, 63, 83-100. (Persian)

-   Rajabian, Zohreh, Ayatollahi, Zahra, Godazgar, Maryam, (2001), Legal age of Marriage: Article 1041 and 1210 civil law), Safir Sobh, Tehran. (Persian)

-   Saffaee, Hossein, (2014), Family law, 40, Mizan, Tehran. (Persian)

-   Shokri, Farideh, (2008), Legal analysis of the age of marriage and the growth of girls, The Quarterly journal of women’s strategic studies, 40, 131-156. (Persian)

-   Taheri, Hadi, (2014), Child marriage in jurisprudence and Iranian law, Master thesis, Ferdousi University, Mashhad. (Persian)

-   Violet, Katrine, (2008), French legal system, (Beigzadeh, Safar), Samt, Tehran. (Persian)